Summary: Miss X complained about how the Council provided for her son, Y’s, special educational needs. There were delays in reviewing Y’s Education Health and Care plan and authorising payments for the support the Council agreed to provide. The Council also communicated poorly with Miss X. The Council agreed to apologise, pay a financial remedy and confirm the ongoing personal budget. It also agreed to review how it communicates between its teams and how it authorises personal budgets.

The complaint

1. Miss X complains about how the Council provided for her son, Y’s, special educational needs since early 2022. She says the Council:
• delayed amending Y’s Education Health and Care (EHC) plan following an annual review in 2022;
• failed to change the direct payments it was paying to reflect the increase and changes it agreed to following the review;
• failed to ensure that Y’s home education was reviewed regularly;
• took too long to review Y’s EHC plan in early 2023;
• failed to properly prepare for Y’s move to secondary education and;
• communicated with her poorly.
2. As a result, Miss X says Y went without some of the support he needed, she was caused significant frustration and distress, and she incurred legal and other costs. She wants the Council to pay the direct payments it agreed to from 2022, repay the costs she incurred and improve its practices in future.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Education health and care plans

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
10. Parents of children with an EHC plan can ask for a personal budget to meet some or all of the support set out in the plan. This is where, instead of arranging the support itself, the Council pays a sum of money it decides is necessary to meet the costs of that support. The parents, or a separate organisation, can then use this money to arrange the required support.
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHC plan, the law says it must start the process of amendment without delay. It must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraphs 9.176 and 9.194)
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

What happened

15. Miss X’s son, Y, has special educational needs. He has had an Education Health and Care (EHC) plan issued by the Council since May 2021.
16. Y’s 2021 EHC plan said he would receive the following, paid through a personal budget managed by a charity, Charity A, on behalf of the Council:
• Education at home through tutors arranged by the Council.
• One hour a week speech and language therapy.
• 15, 50-minute sessions with an occupational therapist.
• Rock climbing sessions.
17. The Council made the first payment to Charity A to cover the costs of Y’s EHC plan for the first year shortly after it agreed the first plan. At first, Y was not able to take part in the speech and language or occupational therapy due to his health conditions. However, the funds were there to cover this therapy when he felt able to access it.
18. The Council reviewed Y’s EHC plan in early February 2022. Following the review the Council told Miss X, in mid-March 2022, that it planned to amend Y’s EHC plan. It then sent Miss X a draft EHC plan included the proposed amendments in mid-May 2022.
19. Miss X had some concerns about the amended plan and personal budget so the Council arranged a meeting in mid-July 2022 to discuss the proposed changes. Following that meeting, the Council issued a final, amended EHC plan for Y in mid-August 2022.
20. The main differences between the 2021 and 2022 EHC plan were:
• twice-weekly out-of-home activities, in place of the rock-climbing sessions; and
• yearly software subscriptions to support Y’s work with an online mentoring service.
21. As before, these were to be funded through the personal budget managed by Charity A and would be arranged by Miss X using a direct payment she could claim from Charity A.
22. The Council sent the amended EHC plan to Miss X and Charity A in mid-August 2022. However, the Council did not sent the amended EHC plan to its team which would authorise the personal budget until early September 2022.
23. Because the Council had not confirmed changes to the personal budget, Charity A told Miss X it could not pay her the direct payment for the new support. Although there were funds still unspent from the previous year, the Council had not authorised or made any payment for the ongoing support, so Charity A could not release the funds to Miss X.
24. Miss X complained to the Council in September 2022 about both delays in confirming the changes to the EHC plan following the February 2022 review, the lack of the confirmed personal budget and poor oversight of Y’s home education.
25. Between September 2022 and January 2023, Miss X and the Council exchanged many emails, including several emails which Miss X says the Council did not respond to. During this time Miss X also asked the Council to arrange the next annual review to prepare for Y’s move to secondary education.
26. The Council sent its formal response to Miss X’s complaint at the end of January 2023. It apologised for the delays, said the relevant team would work to approve the personal budget, it would make a payment to Chairty A and arrange the next annual review. However, it did not give any timescales for any of these actions.
27. Miss X was not satisfied with the Council’s response, so she asked it to consider her complaint at stage 2 at the beginning of February 2023 which the Council responded to in April 2023. It said the annual review had just taken place and it would ensure that Y’s EHC plan would be updated. It did not formally respond to the issues with the personal budget. Instead, it said the relevant team would contact Miss X to respond to this separately. However, there is no evidence of a formal response to this part of Miss X’s complaint.
28. Miss X was not satisfied with the Council’s response, so she complained to the Ombudsman in May 2023.
29. The Council held Y’s annual review meeting in mid-March 2023. After some further discussions with Miss X, the Council sent her its decision about the review and proposed amendments to Y’s EHC plan in late May 2023 followed by a further draft plan in mid-June 2023.
30. In late June 2023 the Council said it authorised the personal budget from the 2022 EHC plan and paid Miss X for the costs she had incurred between February 2022 and January 2023.

My findings

Delays following 2022 review

31. The Council accepts it took too long to tell Miss X that it planned to amend Y’s EHC plan following the review in February 2022. It should have done this within four weeks but took slightly longer than this. That delay was fault but given the short length of the delay, I do not consider that delay to have caused an injustice to Y or Miss X.
32. Once a council has decided to amend any EHC plan it must carry out that process without delay. However, the Council took a further two months to send Miss X its proposed amendments to Y’s EHC plan. Given the amendments made were minor, I consider there was an undue delay in amending Y’s EHC plan, which was fault. I will consider the combined injustice of this and the delays in approving the personal budget below.
33. After sending details of the proposed amendments, the Council then did issue the final amended EHC plan within the required eight weeks.

Delays approving the 2022 personal budget

34. The evidence shows that, despite issuing an amended EHC plan with an increased personal budget in August 2022, the Council did not authorise or pay that personal budget to Charity A until July 2023. The Council has not provided any reasons for the delays in authorising or paying the personal budget and I am satisfied this delay was fault.
35. The August 2022 EHC plan said the Council would provide a set amount for out-of-home activities, including milage. Because the Council had not paid or authorised the budget, Miss X had to pay for these activities herself since then. This limited the amount of activities Y could take part in.
36. At the time the Council reimbursed Miss X for the costs she had incurred in July 2023, it paid her around two thirds of the budgeted amount between February 2022 and January 2023. This was all Miss X had been able to fund herself over that time.
37. The Council has provided no evidence it has paid Miss X for any costs she incurred after January 2023. According to Miss X, she was able to pay for around one third of the out-of-home activities Y would otherwise have been able to take part in between February and October 2023.
38. Had the Council agreed the budget and authorised this in early 2022, when it should have done, I am satisfied Y would have been able to take part in more out-of-home activities than he could.
39. Therefore, my view is that the delays in the 2022 annual review and later authorising the personal budget meant that Y missed out of some of the out-of-home activities he should have had access to between February 2022 and October 2023. This caused an avoidable loss of opportunity for Y and both personal distress and financial difficulty for Miss X.

Reviews of Y’s education

40. To support Y’s EHC plan and at home education, the Council produced several ‘provision plans’, one for each of the main education outcomes in his EHC plan. Each of these plans included two ‘in-year meetings’ and a third meeting which was supposed to be the annual review.
41. The provision plans for both 2021 and 2022 show that most of the in-year review meetings did not take place, despite Miss X asking the Council to arrange these several times.
42. I cannot say what difference holding those review meetings would have had on Y’s ability to engage in education. Despite some of the changes made between 2021 and 2022, including a different mentoring programme, Y still had difficulty engaging with full sessions. However, he did manage to increase the amount of interaction with mentors during that time. There is a remaining uncertainty about what education Y would have taken part in, had the scheduled reviews taken place, and that is an injustice to Miss X.

2023 EHC annual review

43. The Council accepted it was late in carrying out the annual review to prepare for Y’s transition to secondary education. It should have held the review with enough time to issue a final EHC plan by the end of March 2023. However, it did not hold the review meeting until mid-March 2023. That was fault.
44. Despite that delay, I do not think this caused an injustice to Y or Miss X. Until August 2023, the plan was for Y to continue to receive the same education at home. Therefore, there was no disruption to Y’s education due to the delays. The changes which Miss X and the Council later agreed for Y’s education would not have happened earlier had the Council completed the review on time.

Communication and complaints handling

45. I am satisfied the evidence shows the Council’s communication with Miss X was, for significant periods of time, very poor. There were several emails from Miss X which the Council did not reply to, including about the in-year reviews of Y’s education. There was also very little communication from the team within the Council which was responsible for the personal budget about the delays and what the Council was doing to resolve the problem. That poor communication was fault which caused Miss X avoidable frustration.
46. The Council also took nearly five months to respond to Miss X’s stage one complaint. This was significantly longer than the 20 working days in the Council’s complaints procedure. This was fault which added to the frustration Miss X experienced.
47. When the Council sent its response to Miss X’s stage two complaint, the Council did not address Miss X’s ongoing concerns about the personal budget. This led to a disjointed response which caused Miss X further avoidable frustration.

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Agreed action

48. Within one month of my final decision the Council will:
• reimburse Miss X for the eligible costs she incurred from February 2023 onwards;
• confirm, if necessary authorise and pay, any personal budget for the current year;
• apologise to Miss X and Y for the delays and resulting impact this had on them;
• pay Miss X £700 to recognise the uncertainty, distress and frustration it caused her; and
• pay Miss X £500, intended for Y, to recognise the missed opportunity to take part in more outside activities and the distress this caused him.

Within three months of my final decision the Council should:

• review how its SEND Therapies team process and approve personal budgets for EHC plans to ensure these are processed promptly and families are kept aware of any delays; and
• review the working arrangements between its SEND and SEND Therapies teams to ensure that communication between the two teams are effective and that any complaints involving both teams are responded to jointly.
6. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There were delays in reviewing Y’s EHC plan and authorising payments for the support the Council agreed to provide. The Council also communicated poorly with Miss X. The Council agreed to apologise, pay a financial remedy and confirm the ongoing personal budget. It also agreed to review how it communicates between its teams and how it authorises personal budgets.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman